Reply to: Restrictive covenants (again, sorry!)

[ogreboy]

@Not so wise - no, I didn't realise that lying was an acceptable business role for a lawyer.

I must come over as so naive... I have *never* experienced an agency so bent on mutual destruction when the client is/was so desperate to keep the contractor.

Regardless - I have since declined my next renewal (I am now leaving at the end of November).

Since this - another member of the "consortium" of companies (one of whom was the client) has offered me a position on another part of the project.

I feel the restrictive covenant is a "grey area" in this respect and the new client is attempting to use their preferred agency at my "failed" agency in a C2A2A2S arrangement paying weekly or monthly whatever I prefer.

TBH, I'm hoping my last agency refuse this arrangement - at which point I will be talking to my solicitor as I believe that the restrictive covenant cannot be used to prevent me working - if the agency will not accept the new arrangement - and cannot act directly with the new client (they are not approved vendors) - then I'm hoping the new assignment should go relevantly smoothly.

Thanks to those who have read and/or contributed - feels good to let off some steam!

[Not So Wise]

the position I occupy was never advertised - I found it, arranged the interview.... all the agency had to do was send the paperwork to the client and myself.
.

If this is case should have used your own contract but the good news is you are opted into the agency regs regardless of whatever paperwork you signed afterwards (you cannot opt out after the fact only before). Thus timesheets are NOT required and the 6 month lock out clause is invalid. All other agency regs also apply. (If your lawyer did not note this straight away he was either a crap lawyer or has no knowledge of the sector)

Sort out taking a long break over xmas with client and dump agency, little legally they can do to stop you

Next agency use your own contract or negotiate hard for your terms on their contract and make sure they take minimal commission. If client is blue chip or large should have no problem doing so as agency should be willing to do nearly anything to get an "in" with a good client

Also regarding their lawyer, you do know there is no requirement for lawyers to tell the truth to people who are not their client?

[Not So Wise]

Honestly reading though that, seems you have a case of agency playing silly buggers, client playing silly buggers with agency, or bit of both

Reading those snippets and other info you provided seems pretty clear cut to me

You must invoice by the 7th = Agency have 30 days to pay
If you invoice after the 7th agency can pay whenever

Timesheets signed by client are an extra and not necessarily required to invoice agency (unless clause 6 says different) but the provision of them by, signed by line manager I would say covers things quite nicely (if line manager is not autorised by client he should get so or they should get someone autorised)

Don't know how desperate you are to stay in work, but if was me even in the good times under no circumstance would I accept 2 to 3 months exposure (2 months before you can invoice then 30 days to pay), in current climate I would just laugh in their face

If was me would get lawyer to send a very stern letter to them to stick to agreed contract terms, would also talk to client and explain situation and tell them to resolve their issues with agency or you will have to leave.

But your choice really, might all work out or might blow up in your face, but to be honest that kind of exposure could blow up in your face as well and leave you in even worse situation than being out of work for 3 months

[ogreboy]

Faqqer - exactly.... but I never needed to worry about the clause until now since I was *ALWAYS* invoicing before the 7-day limit.... in fact, the agency were accepting and paying weekly invoices.

[TheFaQQer]

3. Any invoices received by the Company after the 7th calendar day of the month following the month in which the Services are performed shall be paid no earlier than 30 days from receipt.

I don't like (3) at all! Since I cannot invoice by the 7th calendar day...

I don't like (3) either - mainly because it says how early they might pay your invoice, but not how late.

[ogreboy]

Oh - and I have checked the credentials of their lawyer.... he is employed in-house and IS qualified. Mind you - I have issues with his interpretations of his own terms.

[ogreboy]

UK Data risk assessment shows 61 - low risk potential.

I have seen a solicitor for a two hour consultation - but he said that to prove that the agency is in breach would be a lengthy and expensive litigation. I guess the agency can claim whatever meaning they like for the "authorised representative of the Client" - since I am unable to confirm WHAT the client's requirements are.

I just feel that even more than ever, the agency are taking their comission for sweet FA - no payroll, no risk, no service - the position I occupy was never advertised - I found it, arranged the interview.... all the agency had to do was send the paperwork to the client and myself.

And with the restrictive covenant, I am forced to grab my ankles or take a lower-rate job elsewhere.

Being forced to use this "shower" as my agency is something which would always have to be forced on me.

[NotAllThere]

"...
And therein is one of the problems - the agency have sent me warning letters via their lawyer not to deal with the client other than to perform the services under the agreement or discuss with the client the terms and conditions of the supplier agreement or schedule....

What you have received is a letter, purporting to be from a lawyer, but it might not be, from the agency, containing a warning that may well have absolutely no legal basis at all.

Agencies are masters at spreading fear, uncertainty and doubt. You need to get aggressive with them. If the outstanding debt is less than £5000, take them through the small claims court.

In your situation I would seek to get out of this contract ASAP, as I would suspect the agency hasn't the money to pay you. Have you checked their credit rating?

[ogreboy]

Oh, and the contract DOES specify the payment terms...

1. Subject to the receipt of a valid Supplier invoice correctly submitted in
accordance with clause 6 above ( Invoice ), the Supplier will receive payment
from the Company for the Assignment in accordance with the fee specified in
the schedule attached plus VAT where appropriate. Payment will be made by
the Company within 30 days of the Invoice being received.

2. In the event that the Invoice is received by the Company on or before the 7th calendar day of the month following the month in which the services are
performed then the Company may at the Company s sole discretion pay the
Invoice within 1 to 14 days of receipt of such Invoice.

3. Any invoices received by the Company after the 7th calendar day of the month following the month in which the Services are performed shall be paid no earlier than 30 days from receipt.

I don't like (3) at all! Since I cannot invoice by the 7th calendar day...

[ogreboy]

"The key is whether the person that is local and signs your timesheets is "an authorised representative of the Client"."

And therein is one of the problems - the agency have sent me warning letters via their lawyer not to deal with the client other than to perform the services under the agreement or discuss with the client the terms and conditions of the supplier agreement or schedule.

The client uses an electronic timesheet-keeping system. The line manager e-mails the contractor support team - a member of whom is authorised to approve the electronic timesheet. When this has been done - both the agency and the contractor receive an e-mail confirming the time is approved.

The line manager is happy to also sign a printed timesheet - the agency has said they will not accept this timesheet.

You know - I thought the contract was pretty clear-cut. Invoicing at the end of the month or within the first seven calendar days for all hours worked the previous month - and times approved in the electronic system. And this has all been acceptable for the last 3 years.

The agency have argued that the contract doesn't specify calendar monthly and that the new approval regime actually just represents a formal invoice-schedule which although not being calendar monthly IS monthly because the invoice dates are once a month.

My current issue is that I cannot invoice on the dates I have been given because they fall outside the 7 days next month stipulation and that the invoicing dates given don't allow me to invoice for the previous month's work.

For example...

The approval/invoice date of 19/11/09 is for the period 02/11/09-15/11/09 and the approval/invoice date of 02/01/10 is for the period 14/12/09-25/12/09.

And no, the schedule does not have ANY invoicing details or periods in it.

[TheFaQQer]

2. The Supplier shall obtain the signature or other confirmation of an authorised representative of the Client as verification of execution of the Assignment or such confirmation as the Client may require from time to time. The Company shall obtain a purchase order or other confirmation from the Client as verification of authorisation of the Assignment.

The key is whether the person that is local and signs your timesheets is "an authorised representative of the Client". If they are not, then you have a problem. If they are, then that's all you need.

Of course, if you hadn't opted out, all this would be a moot point.

[NotAllThere]

...
Live and learn, next time have the contract specifically state how long they have to pay

Still may have some leverage over this. The legislation specifically allows judges to declare payment terms null and void if they are significantly different from the "usual" in the industry. So, if as a result of the agent's intransigence, it's effectively 60 days credit, then that might be sufficient.

[Not So Wise]

1. Upon completion of the Assignment or as may be agreed and specified in the Schedule attached or at the end of each month of the Assignment the Supplier shall deliver to the Company its invoice for the amount due from the Company to the Supplier giving a detailed breakdown showing the work performed and the time spent by the Supplier. The Company shall pay the Supplier each month for all hours worked regardless of whether the Company has received payment from the Client for those hours. The invoice must be received by the Company by no later than the 7th calendar day of the month following the month to which it relates. The Supplier s invoice should bear the Supplier's name, company registration number, VAT number and should state any VAT due on the invoice.

Bold bit is second most relevant bit
Bold and underlined pretty much nails it

So unless the "attached schedule" outlines the payment schedule you mention in your original post you invoice by 7th calendar day of the following month, attaching the signed timesheet by your line manager (this is a client requirement, not an agency one). Not invoicing them for 2 months would actually put you in breach of contract

Tricky bit is don't see how long they have to pay you once they receive the invoice, gov regs probably come into effect but always better to have that in the actual contract.

Live and learn, next time have the contract specifically state how long they have to pay

[NotAllThere]

Alternatively, start with a Statutory Demand, and if that fails, use this to really scare the buggers.

[NotAllThere]

Well, this very cheap non-lawyer thinks that it's obvious that they're not keeping to the terms of the contract. Best bet it is to invoice and then chase payment, if/when they don't pay, not forgetting the admin charges and interest as stipulated by law. www.payontime.co.uk